Prop. 8 or DOMA (or Both): Which Will SCOTUS Take On?


Please don't stick state flags on your gay wedding cake.

Today the 9th Circuit Court of Appeals declined to hear an appeal to revisit a ruling that California's ban on recognizing gay marriage is unconstitutional. Via Reuters:

Supporters of the 2008 ban, Proposition 8, have lost two rounds in federal court but have made clear they will appeal to the U.S. Supreme Court and hope for a favorable response from the conservative-leaning court.

The top U.S. court could agree to hear the matter in the session beginning in October, putting it on track to decide the case within a year.

The court kept the ban on hold for 90 days for Prop. 8's opponents to allow for an appeal to the Supreme Court.

Last week, the 1st Circuit Court of Appeals in Boston declared the federal Defense of Marriage Act (DOMA) unconstitutional for denying marriage benefits to gay couples in states where gay marriage is legal.

So now it's time to analyze which case the Supreme Court might take up, what its choice might mean, and which case would be preferable to those who are pursuing government recognition of gay marriage.

Ari Ezra Waldman, a Harvard Law School grad who contributes to generally progressive gay blog Towleroad, argues DOMA would be more likely to produce a gay-friendly outcome:

DOMA is uniquely odious to conservative and liberal jurists. To the conservative, DOMA is an example of Congressional overreach: Congress went beyond its specific Article I powers to intrude upon an area of law exclusively and traditionally reserved to the States. To the liberal, DOMA is an example of obvious discrimination that violates the Constitutional principles of equal protection. It denies similarly situated persons the exact same rights that are freely granted—even, taken for granted—by other persons.

By taking up DOMA, the Supreme Court wouldn't necessarily have to decide the entire issue of whether government recognition of gay marriage is a constitutional right. They could confine the ruling to whether the federal government can refuse to recognize marriages that individual states have legally allowed.

Below, Zach Wahls talks to reason.tv about his two moms and the future of same-sex marriage.